Action brought on 14 April 2008 - Ferrero v OHIM - Tirol Milch (TiMi KINDERJOGHURT)

(Case T-140/08)

Language in which the application was lodged: English

Parties

Applicant: Ferrero SpA (Alba, Italy) (represented by: C. Gielen, lawyer, and F. Jacobacci, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Tirol Milch rGmbH (Innsbruck, Austria)

Form of order sought

Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal market (Trade Marks and Designs) of 30 January 2008 in case R 628/2007-2; and

order OHIM to pay the costs.

Pleas in law and main arguments

Registered Community trade mark subject of the application for a declaration of invalidity: A word mark consisting of the words "TiMi KINDERJOGHURT" for goods in class 29 - application No 792 978

Proprietor of the Community trade mark: Tirol Milch reg. Gen. mbH

Party requesting the declaration of invalidity of the Community trade mark: The applicant

Decision of the Cancellation Division: Invalidity of the challenged trade mark

Decision of the Board of Appeal: Annulment of the Cancellation Division's decision and dismissal of the request for declaration of invalidity

Pleas in law: The Second Board of Appeal erred in establishing that the previous final decisions between the same parties and concerning the same trade mark are binding in the subsequent action for invalidity before the Cancellation Division and the Board of Appeal; Infringement of article 8(1)(b) and 8(5) of Council Regulation No 40/94 as the challenged trade mark is similar to an earlier trade mark.

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